Fabing et al v. Lakeland Regional Medical Center, Inc. et al
Filing
12
ORDER granting 7 motion to dismiss. The Clerk is directed to terminate all pending motions and close the case. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 2/15/2013. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN FABING and MARY FABING,
Plaintiffs,
v.
Case No.
8:12-cv-2624-T-33MAP
LAKELAND REGIONAL MEDICAL
CENTER, INC., JACK STEPHENS,
PETERSON & MYERS, P.A., and
PETER E. PUTERBAUGH,
Defendants.
______________________________/
ORDER
The Fabings allege that the nurses at Lakeland Regional
Medical Center abused and neglected Mary Fabing, an adult over
the age of 65, during her May 21, 2011, stay at the Hospital.
The Fabings filed a scattershot amended complaint against the
Hospital and others on December 18, 2012. (Doc. # 6).
The
Defendants filed a Motion to Dismiss (Doc. # 7) on January 10,
2013, asserting that the federal claims are baseless and that
the Court should decline to exercise supplemental jurisdiction
over the pendant state law claims.
After considering the
Fabings’ responsive submissions, the Court grants the Motion
to Dismiss.
I.
Background
On May 21, 2011, while Mrs. Fabing was a Hospital
patient, a nurse “slammed” Mrs. Fabing’s head against the bed
railing causing a “tennis ball sized lump and redness.” (Doc.
# 6 at 5). The Hospital’s nurses also left Mrs. Fabing soaked
in her own urine for two hours. Id. at 6.
In addition, the
nurses incorrectly administered blood to Mrs. Fabing through
a stint, causing blood to leak and drip onto her bed. Id. Mrs.
Fabing asked to speak to a social worker, and the nurses
responded that the social workers were not available on
weekends. Id.
Mrs. Fabing was thereafter discharged from the
Hospital.
The Fabings assert that Mrs. Fabing now has “psychotic
flashbacks” and nightmares about her stay at the Hospital. Id.
at 7.
They contend that Mrs. Fabing suffered from a heart
attack on September 11, 2012, “brought on by these reoccurring
nightmares.” Id.
On November 20, 2012, the Fabings filed a pro se lawsuit
in this Court against the Hospital, Jack Stevens (a former CEO
of
the
Hospital),
Peterson
&
Myers,
P.A.
(the
lawfirm
representing the Hospital) and Peter E. Puterbaugh, Esq. (the
Hospital’s general counsel). (Doc. # 1).
The Fabings sought
to proceed in forma pauperis. (Doc. ## 2, 3).
On December 4,
2012, this Court denied the motion to proceed in forma
pauperis and noted that the complaint “fails to state a claim
upon
which
relief
can
be
granted
2
and
appears
patently
frivolous . . . [n]onetheless, the Plaintiffs will be afforded
an opportunity to amend their complaint.” (Doc. # 5 at 1-2).
On December 18, 2012, the Fabings filed their amended
complaint, accompanied by the filing fee of $350.00. (Doc. #
6).
The amended complaint is not divided into counts, does
not contain numbered paragraphs, and is not presented in an
orderly fashion.1 Rather, the Fabings enumerate a plethora of
alleged criminal and civil violations under both federal and
state law.
The Fabings mention the following statutes, among
other legal provisions, but do not address the particular
elements of any specific cause of action: Title II of the
Americans with Disabilities Act; the Rehabilitation Act; the
Federal Tort Claims Act; 2 U.S.C. § 1964; 42 U.S.C. §§ 1981,
1983, 1988; Title VII of the Civil Rights Act of 1964; and
Florida Statutes §§ 414.101, 415.1034, 825.103, 825.104,
784.08(1).
The Fabings seek economic damages, non-economic
damages, punitive damages, treble damages, injunctive relief,
and declaratory relief.
The total amount of damages sought
exceeds $1.7 million.
The Defendants filed a Rule 12(b)(6) Motion to Dismiss
1
Defendants’ contention that the amended complaint fails
to comply with Rule 8 of the Federal Rules of Civil Procedure
is an understatement.
3
(Doc. # 7) on January 10, 2013.
On January 24, 2013, the
Fabings filed their “Motion to Declare Defendants Motion to
Dismiss a Sham and Motion for Summary Final Judgment,” which
this Court construes as the Fabings’ response to the Motion to
Dismiss.
(Doc.
#
8).2
The
Defendants
responded
to
the
Fabings’ submission (Doc. # 9) on February 8, 2013. (Doc. #
9).
On February 12, 2013, the Fabings filed an Emergency
Motion for a hearing on their “Motion to Declare Defendants
Motion
to
Dismiss
a
Judgment.” (Doc. # 10).
Sham
and
Motion
for
Summary
Final
The Court determines that a hearing
is unnecessary, and the Court dismisses the amended complaint
as follows.
II.
Legal Standard
On a motion to dismiss, this Court accepts as true all
2
Although titled as a Motion for Summary Judgment, the
Court finds that the Fabings’ submission (Doc. # 8) does not
warrant Rule 56 summary judgment analysis.
The Motion is
prematurely asserted before the commencement of any discovery,
and the Motion does not contain or cite to any evidence
bolstering the Fabings’ claims or indicating why they are
entitled to judgment as a matter of law. In addition, to the
extent the Motion seeks an order striking Defendants’ Motion
to Dismiss, that request is denied. Motions to strike are
disfavored due to their “drastic nature.” Royal Ins. Co. of
Am. v. M/Y Anastasia, No. 95-cv-30498, 1997 U.S. Dist. LEXIS
15595, at *10 (N.D. Fla. Jan. 30, 1997). The Fabings have not
demonstrated that any of Defendants’ submissions are subject
to the draconian sanction of being stricken under Rule 12(f),
Fed.R.Civ.P., or other governing law.
4
the allegations in the complaint and construes them in the
light most favorable to the plaintiff.
Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further,
this Court favors the plaintiff with all reasonable inferences
from the allegations in the complaint.
Stephens v. Dep’t of
Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990)
(“On a motion to dismiss, the facts stated in [the] complaint
and all reasonable inferences therefrom are taken as true.”).
However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted).
Further, courts are not “bound to accept
as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
III. Analysis
A.
The
Americans
with
Rehabilitation Act
Disabilities
Act
and
The Fabings assert that Defendants violated Title II of
the Americans with Disabilities Act. Title II of the ADA
5
provides
a
private
cause
of
action
in
the
instance
of
disability discrimination by a public entity: “no qualified
individual
with
a
disability
shall,
by
reason
of
such
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity.”
42 U.S.C. § 12132. “Only public entities are liable for
violations of Title II of the ADA.” Edison v. Douberly, 604
F.3d 1307, 1308 (11th Cir. 2010).
facts
The Fabings do not plead
demonstrating that the Hospital is a “public entity.”
In
addition,
the
individual
defendants--Stevens
and
Puterbaugh–-as well as the lawfirm-–Peterson & Myers, P.A.-cannot be “public entities” under the ADA by virtue of the
plain language of the statutory definition, which defines
“public entity” as “any State or local government” or “any
department,
agency,
special
purpose
district,
or
other
instrumentality of a State or States or local government.” 42
U.S.C. § 12131.
As explained in Schiavo ex rel. Schindler v.
Schiavo, 358 F. Supp. 2d 1161, 1165 (M.D. Fla. 2005), the
existence of a “public entity” is “an essential element of a
Title II claim.”
Even
assuming,
for
the
sake
of
argument,
that
the
Hospital was a public entity, the Fabings’ Title II claim is
6
subject to dismissal because the amended complaint fails to
include factual allegations that plausibly suggest that the
Hospital denied Mrs. Fabing full and equal enjoyment of its
services on the basis of Mrs. Fabing’s alleged disability. Id.
The Court also notes that, had the Fabings asserted their
claim pursuant to Title III of the ADA, the outcome would be
the
same
because
the
amended
complaint
allegations of disability discrimination.
is
devoid
of
Any claim asserted
under the Rehabilitation Act, 29 U.S.C. § 794, fails for the
same reason: the complete absence of allegations plausibly
suggesting that Mrs. Fabing was discriminated against by the
Defendants on the basis of a disability.
Accordingly, the
Fabings’ claims predicated upon the ADA and the Rehabilitation
Act are dismissed.
B.
The Federal Tort Claims Act
The Fabings are not entitled to relief under the Federal
Tort Claims Act because they are not obtaining relief from the
Federal Government, and they have not alleged that any of the
Defendants are employed by the Federal Government. See United
States v. Orleans, 425 U.S. 807, 813 (1976)(“The Federal Tort
Claims Act is a limited waiver of sovereign immunity, making
the Federal Government liable to the same extent as a private
party for certain torts of federal employees acting within the
7
scope of their employment.”); Tisdale v. United States, 62
F.3d 1367, 1371 (11th Cir. 1995)(“Suits under the FTCA are
limited
to
those
which
involve
claims
arising
from
the
negligent or wrongful act or omission of any employee of the
Government
acting
within
employment.”)(internal
the
citation
scope
of
his
omitted).
office
The
or
amended
complaint does not contain factual allegations bringing this
action within the limited ambit of the Federal Tort Claims
Act, and any claims predicated upon the FTCA are accordingly
dismissed.
C.
Section 1983
It appears that the Fabings seek redress pursuant to 42
U.S.C. § 1983, which provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law.
“It is well-established that section 1983 itself creates
no
substantive
deprivations
of
rights;
it
federal
merely
rights
provides
established
a
remedy
for
elsewhere.”
Wideman v. Shallowford Community Hosp., Inc., 826 F.2d 1030,
1032 (11th Cir. 1987).
The Eleventh Circuit has explained:
8
“To sustain a cause of action based on section 1983, the
[plaintiffs]
must
establish
two
elements:
(1)
that
they
suffered a deprivation of rights, privileges or immunities
secured by the Constitution and laws of the United States, and
(2) that the act or omission causing the deprivation was
committed by a person acting under color of law.” Wideman, 826
F.2d at 1032.
The Fabings’ purported section 1983 claim is fatally
flawed because the Fabings fail to identify a violation of
federal law.
Even if they had identified an alleged federal
violation, the Fabings cannot show that the alleged violation
was committed by a person acting under color of state law.
This claim is therefore subject to dismissal.
D.
Section 1981
The Fabings also invoke 42 U.S.C. § 1981, which states:
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the
security of persons and property as is enjoyed by
white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licences, and
exactions of every kind, and to no other.
In Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474 (2006),
the Court explained, “Among the many statutes that combat
racial discrimination, § 1981 . . . has a specific function:
9
It
protects
jurisdiction
the
of
equal
the
right
United
of
all
States
persons
to
make
within
and
the
enforce
contracts without respect to race.” (internal quotation marks
omitted).
The
factual
allegations
in
the
amended
complaint,
construed broadly and with an understanding that the Fabings
are pro se, simply do not fall within the parameters of a
section 1981 claim.
racial
The allegations have no relationship to
discrimination
contracts.
or
the
power
to
make
and
enforce
Accordingly, the Fabings’ section 1981 claim is
dismissed.3
E.
Other Federal Statutes
The Fabings also make mention of 2 U.S.C. § 1964 and
Title VII of the Civil Rights Act of 1964.
out of place in this suit.
Both statutes are
Specifically, 2 U.S.C. § 1964
governs “Capitol police powers and duties” and sets forth
provisions for security systems protecting Capitol buildings
and grounds. Title VII of the Civil Rights Act of 1964,
relating to workplace discrimination, is similarly inapposite.
F. Supplemental Jurisdiction
3
While the Fabings also mention 42 U.S.C. § 1988, the
Court notes that this section does not supply an independent
cause of action applicable to this case.
10
Having dismissed each of the Fabings’ federal claims, the
Court determines that it is appropriate to decline to exercise
supplemental jurisdiction over the Fabings’ remaining civil
claims,
which
are
asserted
under
state
law.
Diversity
jurisdiction is not present in this case, and the Court finds
that judicial economy and fairness to the parties are not
served by retaining the state law claims.4
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
The Motion to Dismiss (Doc. # 7) is GRANTED.
(2)
The Clerk is directed to terminate all pending motions
and to Close this Case.
DONE and ORDERED in Chambers, in Tampa, Florida, this
15th day of February 2013.
Copies: All Counsel and Parties of Record
4
It is not necessary to address the Fabings’ criminal
allegations, as the Fabings lack standing to assert criminal
claims against Defendants, even in light of Mr. Fabing’s
assertion that he is acting as a “private attorney general.”
(Doc. # 6).
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?